Palvinder Singh alias Ladi and Others vs Balbir Kaur

L.N. Mittal, J.

C.M. No. 10926-C-2009

This is application by appellants for permission to file the appeal as indigent persons alleging that the appellants are not possessed of sufficient means to pay requisite court fee. This application is accompanied by affidavit. The appellants were allowed by the lower appellate Court to file the appeal as indigent persons. In view thereof, the instant application is allowed and appellants are permitted to file the instant second appeal as indigent persons.

RSA No. 3568 of 2009

Defendants are in Second Appeal, having remained unsuccessful in both the Courts below.

Respondent Balbir Kaur filed suit u/s 1A of the Fatal Accidents Act, for recovery of Rs. 3 lacs alleging that the defendants on 16.07.1998 inflicted serious injuries with spade (kassi) and sword(kirpan) on various parts of plaintiff''s body. On statement of plaintiff''s husband, FIR No. 45 dated 16.07.1998 was registered against the defendants u/s 307 read with Section 34 of Indian Penal Code (IPC). The defendants stand convicted and sentenced vide judgment dated 20.09.1999 by learned Sessions Judge, Kurukshetra in the said case. On account of injuries, the plaintiff suffered constant pain and was also unable to do work and her face was also disfigured. Prior to this incident, the plaintiff was working as labourer and also maintaining buffaloes and thereby earning Rs. 6,000/- per month. The plaintiff also spent considerable amount on her treatment and medicines. Accordingly, plaintiff claimed compensation of Rs. 3 lacs from the defendants.

The defendants controverted the allegations of the plaintiff and pleaded that they did not cause any injury to the plaintiff. Some unknown persons with muffled faces caused injuries to the plaintiff, who could not identify the real assailants. Later on, plaintiff''s husband falsely implicated the defendants on account of enmity. It was, however, admitted that the defendants have been convicted and sentenced by learned Sessions Judge, Kurukshetra. The defendants however, pleaded that their appeal against judgment of conviction and sentence was still pending in the High Court and sentence has been stayed. It was denied that plaintiff''s face has been disfigured or that she was earning Rs. 6,000/- per month. It was alleged that plaintiff is doing domestic work and has not been disabled.

Learned Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 30.11.2007 decreed the suit of plaintiff for recovery of Rs. 2,23,000/- as damages against the defendants jointly and severally along with interest @ 9% per annum from the date of filing of suit till realization. First appeal preferred by the defendants has been dismissed by learned Addl. District Judge, Kurukshetra vide judgment and decree dated 01.06.2009. Feeling aggrieved, the instant Second Appeal has been preferred by the defendants.

I have heard the learned Counsel for the parties and perused the case file.

Learned Counsel for the appellants vehemently contended that the plaintiff has filed suit u/s 1A of the Fatal Accidents Act, but the said provision is meant for claiming compensation on account of causing of death of any person and not on account of injuries as in the instant case and therefore the suit itself is not maintainable. Reliance has been placed by the counsel for the appellants in support of his contention on judgment of Rajasthan High Court in case of Raj Kumar v. District Judge, Sriganganagar and Ors. 2005(2) RCR (Civil) 541. The contention on first blush appears attractive, but is devoid of any merit. It is correct that compensation for injuries cannot be claimed under Fatal Accidents Act under which compensation can be claimed only for causing of death. However, mere mentioning of wrong provision would not be sufficient to non-suit the plaintiff. The plaintiff''s suit is maintainable under general law for damages for injuries caused to her by the defendants. Consequently, mere mentioning of Section 1A of the Fatal Accidents Act would not be sufficient to dismiss the suit. No prejudice either has been caused to the defendants by mentioning of the said wrong provision.

Learned Counsel for the appellants next contended that the occurrence took place on 16.07.1998 but the suit was filed on 12.02.2002 and, therefore, the suit is barred by limitation. It was also contended that even if the defence of bar of limitation is not raised in the written statement, the suit if filed beyond limitation would be liable to dismissal in view of Section 3 of the Limitation Act. In support of this contention, reliance has been placed on judgment of Hon''ble Supreme Court of India in case of Kamlesh Babu and Ors. v. Lajpat Rai Sharma and Ors. 2008(2) RCR(Civil) 872. There is no dispute with proposition of law that even if defence of bar of limitation is not raised in the written statement, the suit would still be liable to be dismissed if filed beyond limitation, in view of clear provision of Section 3 of the Limitation Act. However, in the instant case, learned Counsel for the respondent pointed out that the plaintiff-respondent filed the suit as indigent person on 26th November, 1999 but the plaintiff''s application for permission to file the suit as indigent person was allowed by the trial Court vide order dated 12.02.2002 and thereupon the suit was registered on 12.02.2002. It was pointed out that prior to 12.02.2002 the defendants had even filed written statement in the suit. In view of this factual submission of learned Counsel for the respondent, which has not been controverted by learned Counsel for the appellant the suit instituted on 26.11.1999 cannot be said to be barred by limitation.

There is concurrent finding of fact by the Courts below against the appellants. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal.

For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed.